Proposed FRE 504
(1) A "patient" is a person who consults or is examined or interviewed by a psychotherapist.
(2) A "psychotherapist" is (A) a person authorized to practice medicine in any state aor nation, or reasonably believed by the patient so to be, while engaged in the diagnosis or treatment of a mental or emotional condition, including drug addiction, or (B) a person licenses or certified as a psychologist under the laws of any state or nation, while similarly engaged.
(3) A communication is "confidential" if not intended to be disclosed to third persons other than
those present to further the interest of the patient in the consultation, examination, or interview,
or persons reasonably necessary for the transmission of the communication, or persons who are
participating in the diagnosis and treatment under the direction of the psychotherapist, including
members of the patient's family.
(b) General rule of privilege. A patient has a privilege to refuse to disclose and to prevent any
other person from disclosing confidential communications, made for the purpose of diagnosis or
treatment of his mental or emotional condition, including drug addiction, among himself, his
psychotherapist, or persons who are participating in the diagnosis or treatment under the
direction of the psychotherapist, including members of the patient's family.
(c) Who may claim the privilege. The privilege may be claimed by the patient, by his guardian
or conservator, or by the persoinal representative of a deceased patient. The person who was the
psychotherapist may claim the privilege but only on behalf of the patient. His authority so to do
is presumed in the absence of evidence to the contrary.
(1) Proceedings for hospitalization. Ther is no privilege under this rule for communications
relevant to an issue in proceedings to hospitalize the patient for mental illness, if the
psychotherapist in the course of diagnosis or ;treatment has determined that the patient is in need
(2) Examination by order of judge. If the judge orders an examination of the mental or
emotional condition of the patient, communications made in the course thereof are not privileged
under this rule with respect to the particular purpose for which the examination is ordered unless
the judge orders otherwise.
(3) Condition an element of claim or defense. There is no privilege under this rule as to
communications relevant to an issue of the mental or emotional condition of the patient in any
proceeding in which he relies upon the condition as an element of his claim or defense, or, after
the patient's death, in any proceeding in which any party relies upon the condition as an element
of his claim or defense.